Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to section 55.1
Between:
Dale McDonald
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Jan Dymond, Vice-Chair
APPEARANCES:
For the Appellant: Dale McDonald, Self-Represented
For the Respondent: Sadia Ashraf, Agent
Heard by teleconference: March 6, 2025
OVERVIEW
1Dale M. McDonald (the "appellant") appeals the 45-day impoundment of his 2018 Chevrolet Equinox under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). The vehicle was impounded on February 12, 2024. At the time of the impoundment, Paul Adam Deveau ("the driver") was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.
2The appellant relies on section 50.2(3)(c) of the Act, namely that he exercised due diligence in attempting to ensure that the driver's licence of the driver of the vehicle at the time it was impounded was not under suspension.
3The Registrar submitted documents confirming that the driver's licence of the driver of the motor vehicle at the time it was detained in order to be impounded was under suspension. Accordingly, I find that the vehicle was lawfully impounded pursuant to s. 55.1(1) of the Act.
ISSUES TO BE DETERMINED
4The issue is dispute is:
i. whether the appellant exercised due diligence in attempting to determine that the driver's licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension.
RESULT
5I find that the appellant exercised due diligence in attempting to determine if the driver's licence of the driver of the vehicle was not under suspension at the time it was detained in order to be impounded. As a result, I order the release of the vehicle.
ANALYSIS
6The owner of a vehicle which has been impounded under s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.
7An owner may appeal only on the grounds set out in s. 50.2(3) of the Act. The appellant appeals under s. 50.2(3)(c) on grounds that he exercised due diligence in attempting to determine that the driver's licence of the driver was not suspended at the time the motor vehicle was detained in order to be impounded.
The owner has demonstrated that he exercised due diligence
8I find that the appellant has demonstrated, on a balance of probabilities, that he exercised due diligence in attempting to determine whether the driver's licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension under 50.2(3)(c).
9The Act does not provide a definition of due diligence. However, previous rulings of the Court and the Tribunal provide guidance as what constitutes due diligence for these purposes. For example, in Horst v. Registrar of Motor Vehicles, 2022 CanLII 106454 (ON LAT), the Tribunal found that due diligence applies to the actions the owner ought to take to meet the legal responsibility of ensuring their vehicle is operated by a licensed driver.
10In considering the extent of those actions, the Supreme Court of Canada, in R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R 1299, describes due diligence as taking all reasonable care and the actions a reasonable person would have taken in the same or similar circumstances.
11The Tribunal, in 10719 v. Registrar of Motor Vehicles, 2017 CanLII 35348 (ON LAT), found that the extent of inquiry and action to determine the validity of a licence may also depend on the nature of the relationship between the owner and the driver, as well as on the circumstances under which the driver is permitted to use the vehicle.
12To prove due diligence, the appellant must establish that he took reasonable care and undertook actions to determine that the driver was properly licensed. Reasonable care does not mean perfection and is considered in the context of the circumstances under which use of the vehicle is being permitted by its owner.
13The Tribunal has considered various steps an owner can take to determine whether they have exercised due diligence. The steps necessary to establish due diligence may be different depending on the circumstances of each case. The Tribunal has also consistently held that the owner's obligation is to exercise due diligence at or near the time the vehicle is detained. This is consistent with the wording of the Act.
14The appellant testifies that he took the subject vehicle to a licenced automotive repair facility (Central Auto Parts and Service) on February 6, 2025 because of transmission problems and that, as part of turning the vehicle over for repairs, he gave his permission for the vehicle to be test-driven. The subject vehicle was impounded six days later while still in the hands of the repair facility. The appellant submits that the facility has been in business for at least 40 years, has a good reputation, and that he has taken vehicles there on several occasions in the past without problem. He also testifies that the facility employs a number of mechanics, and he has seen the driver working at the facility over the past four years or so. The appellant acknowledges that he did not ask who would be driving the vehicle or ask whether the facility regularly checks the driver's licences of employees.
15The appellant submits that he had no reason to suspect that individuals working at an automotive repair facility would not be licenced to drive and that it would be his responsibility to check or inquire about the driver's licences of employees of the facility. He also testifies that the owners of the facility were unaware that the driver's licence of the driver had been suspended and that the driver no longer works at the facility.
16The respondent submits that the appellant did not do his due diligence because the appellant failed to confirm whether the driver held a valid driver's licence by asking to examine the licence, using the MTO website, or any other active means. The respondent further submits that the appellant did not inquire as to the driver's licence status of the facility's employees when he dropped off the vehicle for repairs. The respondent asks that the impoundment be confirmed.
17As noted above, an owner is expected to take reasonable steps to determine that the driver's licence of the driver was not suspended prior to allowing him to drive. I also note that consideration of due diligence must be context-specific and does not require perfection.
18In this case, I find that the appellant was not in a position to take active steps, as the respondent submits he should have, to determine whether the driver's licence of the driver of the motor vehicle at the time it was detained in order to be impounded was valid because the appellant could not have known which employee would be test-driving the vehicle six days after the appellant dropped it off. The appellant, therefore, was not in a position to inquire into the status of the driver's licence of the driver at or near the time it was detained. Nor do I accept that the appellant was required to ask about the driver's licence status of the repair facility's employees when he dropped off his car for repairs given that he entrusted his vehicle to a licenced repair facility that he had used previously without incident. I am, therefore, satisfied that the appellant took the steps a reasonable person would have taken in the same or similar circumstances to ensure that the driver's licence of the driver was not under suspension.
19For the reasons above, I find that the appellant has met his onus to establish, on a balance of probabilities, that he exercised due diligence in attempting to ensure that the driver's licence of the driver of the motor vehicle was not then under suspension under s.50.2(3)(c) of the Act.
Conclusion
20I find that the appellant has established that he exercised due diligence in attempting to determine that the driver's licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension under s.50.2(3)(c) of the Act.
ORDER
21Pursuant to s.50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.
Jan Dymond
Vice-Chair
Released: March 7, 2025